Answer Response No Fee

Cal. Super. - 6th Dist.April 1, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV38 1 447 Santa Clara - Civil DARRYL A. ROSS, ESQ (State Bar N0. 180022) Email: daross@marinerhealthcare.com 5440 Trabuco Road Irvine, CA 92620 Tel: (949) 238-7775 Fax: (949) 325-7833 A. Villan Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/1 6/2021 9:40 AM Reviewed By: A. Villanueva Case #21 CV381447 Envelope: 7066372 Attorney for Defendants, ALMADEN OPERATING COMPANY, LP dba ALMADEN HEALTH AND REHABILITATION CENTER; and CHARO LAGUNILLA SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA MARIE ROMERO, an individual, by and through her Guardian ad Litem/legal-personal representative, DARLENE D. DRACE Plaintiff, VS. ALMADEN OPERATING COMPANY LP dba ALMADEN HEALTHCARE AND REHABILITATION CENTER, a California Skilled Nursing Facility; CHARO LAGUNILLA as Director ofNursing for ALMADEN OPERATING COMPANY LP dba ALMADEN HEALTHCARE AND REHABILITATION CENTER, and DOES 1 through 50, inclusive, Defendants Case No.: 21CV381447 DEFENDANTS, ALMADEN OPERATING COMPANY, LP AND CHARO LAGUNILLA’S ANSWER TO PLAINTIFF’S COMPLAINT FOR DAMAGES Complaint Filed: Trial Date: April 1, 2021 None set COMES NOW Defendants, ALMADEN OPERATING COMPANY, LP dba ALMADEN HEALTH AND REHABLILTATION CENTER and CHARO LAGUNILLA (hereinafter referred t0 as (“Defendants”) in answer to the Complaint for Damages filed by Plaintiff, MARIE ROMERO, an individual, by and through her Guardian ad Litem/legal-personal representative, DARLENE D. DRACE (hereinafter collectively referred to as “Plaintiff’) 0n file herein, for themselves and for n0 others admit, deny, and allege as follows: -1- DEFENDANTS, ALMADEN OPERATING COMPANY, LP AND CHARO LAGUNILLA’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES ueva 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GENERAL DENIAL Pursuant t0 California Code of Civil Procedure Section §431.30, Defendants ALMADEN OPERATING COMPANY, LP dba ALMADEN HEALTH AND REHABLILTATION CENTER and CHARO LAGUNILLA deny, generally and specifically, each and every allegation contained in the Complaint and the whole thereof, and further deny that Plaintiff has been damaged in the sums alleged 0r any sum or sums at all. FIRST AFFIRMATIVE DEFENSE (Adequate Remedy at Law) 1. As a separate and first affirmative defense to the Complaint and each purported cause 0f action contained therein, Defendants allege that Plaintiff has an adequate remedy at law. SECOND AFFIRMATIVE DEFENSE (All Obligations Performed) 2. As a separate and second affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendants allege that Defendants have fully and/or substantially performed any and all obligations it may have had to Plaintiff. THIRD AFFIRMATIVE DEFENSE (Apportionment 0f Fault) 3. As a separate and third affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendants allege that Plaintiff’s damages, if any, were caused by the negligence and/or acts or omissions of parties other than these Defendants, whether or not parties to this action. By reason thereof, Plaintiffs damages, if any, as against these Defendants, must be reduced by the proportion of fault attributable to such other parties, and to the extent that this is necessary, Defendants may be entitled to partial indemnity from others on a comparative fault basis. FOURTH AFFIRMATIVE DEFENSE (Comparative Fault) 4. As a separate and fourth affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendants allege that Plaintiff’s damages, if any, were caused by the primary negligence and/or acquiescence in the acts and omissions alleged in the Complaint by the -2- DEFENDANTS, ALMADEN OPERATING COMPANY, LP AND CHARO LAGUNILLA’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, and Plaintiff’s agents, employees, representatives, relatives, heirs, assigns, attorneys, and/or any others acting 0n Plaintiff s behalf. By reason thereof, Plaintiff is not entitled t0 damages or any other relief whatsoever as against these Defendants. FIFTH AFFIRMATIVE DEFENSE (Compliance with the Law) 5. As a separate and fifth affirmative defense to the Complaint and each purported cause 0f action contained therein, Defendants allege that the actions taken by Defendants were in full compliance With the law. SIXTH AFFIRMATIVE DEFENSE (Consent) 6. As a separate and sixth affirmative defense to the Complaint and each purported cause of action contained therein, Defendants allege that Plaintiff is barred from prosecuting the purported causes of action set forth in the Complaint because Plaintiff, and/or the persons and/or entities acting on Plaintiff’ s behalf, consented to and acquiesced in the subject conduct. SEVENTH AFFIRMATIVE DEFENSE (Estoppel) 7. As a separate and seventh affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendants allege that Plaintiff is barred in whole or in part from prosecuting the purported causes 0f action set forth in the Complaint by the doctrine 0f estoppel. EIGHTH AFFIRMATIVE DEFENSE (Failure t0 Mitigate) 8. As a separate and eighth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendants allege that Plaintiff s claims, if any, are barred for the failure, and/or the failure of the persons and/or entities acting on their behalf, to mitigate any purported damages. / / / / / / / / / -3- DEFENDANTS, ALMADEN OPERATING COMPANY, LP AND CHARO LAGUNILLA’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NINTH AFFIRMATIVE DEFENSE (Failure t0 State a Claim) 9. As a separate and ninth affirmative defense to the Complaint, and to the purported causes of action set forth therein, Defendants allege that the Complaint fails t0 state facts sufficient to constitute a cause of action. TENTH AFFIRMATIVE DEFENSE (Lack 0f Jurisdiction) 10. As a separate and tenth affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendants allege that the Superior Court in and for that State 0f California lacks personal jurisdiction over this answering party. ELEVENTH AFFIRMATIVE DEFENSE (Lack 0f Standing) 11. As a separate and eleventh affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendants allege that Plaintiff lacks standing t0 prosecute the purported claims set forth in the Complaint. TWELFTH AFFIRMATIVE DEFENSE (N0 Injury 0r Damage) 12. As a separate and twelfth affirmative defense to the Complaint and each purported cause of action contained therein, Defendant allege that Plaintiff has not been injured or damaged as a proximate result 0f any act or omission for Which Defendants are responsible. THIRTEENTH AFFIRMATIVE DEFENSE (N0 Malicious Intent) 13. As a separate and thirteenth affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendants allege that Defendant did not act with malicious intent t0 deprive any person 0f any Constitutional right 0r t0 cause any other injury and therefore is not liable. / / / / / / -4- DEFENDANTS, ALMADEN OPERATING COMPANY, LP AND CHARO LAGUNILLA’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOURTEENTH AFFIRMATIVE DEFENSE (Non-Joint Liabilitv for Non-Economic Damages Civil Code Section 1431.2) 14. As a separate and fourteenth affirmative defense to the Complaint and each purported cause of action therein, should it be found that Defendants are in any manner legally responsible for any damages sustained by Plaintiff, which Defendants specifically deny, Defendants’ liability for non-economic damages shall be several only and not joint, such that Defendants shall be liable only for the amount ofnon-economic damages allocated to Defendant in direct proportion t0 its percentage 0f fault. FIFTEENTH AFFIRMATIVE DEFENSE (Not Liable for Act 0r Omission 0f Subordinate) 15. As a separate and fifteenth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendants allege that insofar as Defendants have delegated any duty to any subordinate, such delegation was at all times done in good faith, and With due care. Defendants are therefore not liable for any act or omission 0f any subordinate. SIXTEENTH AFFIRMATIVE DEFENSE (Ongoing Investigation) 16. As a separate and sixteenth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendants allege that it has not yet completed a thorough investigation or study or completed the discovery of all the facts and circumstances of the subject matter 0f the Complaint and, accordingly, reserves the right to amend, modify, revise or supplement its answer and t0 plead such other defenses and take such other further actions as Defendants may deem proper and necessary in its defense upon completion of said investigation and/or study. SEVENTEENTH AFFIRMATIVE DEFENSE (Proximate Cause - Other Persons) 17. As a separate and seventeenth affirmative defense to the Complaint and each purported cause 0f action contained therein, Defendants allege that the damages alleged to have been suffered by Plaintiff in the Complaint were proximately caused 0r contributed t0 by acts 01‘ failures t0 act of -5- DEFENDANTS, ALMADEN OPERATING COMPANY, LP AND CHARO LAGUNILLA’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 persons other than these answering Defendants, Which acts 0r failures to act constitute an intervening and superseding cause 0f the damages alleged in the Complaint. EIGHTEENTH AFFIRMATIVE DEFENSE (Proximate Cause - Plaintiff) 18. As a separate and eighteenth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendants allege that the injuries and damages alleged in the Complaint by Plaintiff occurred, were proximately caused by and/or were contributed to by Plaintiff’ s own acts or failures t0 act and that Plaintiff’s recovery, if any, should be reduced by an amount proportionate to the amount by Which said acts caused or contributed to said alleged injury or damages. NINETEENTH AFFIRMATIVE DEFENSE (Punitive Damages Barred) 19. As a separate and nineteenth affirmative defense t0 the Complaint and each purported cause ofaction contained therein, Defendants allege that Plaintiffclaim for punitive damages is barred by the provisions of California Civil Code Sections 3294 and 3295. TWENTIETH AFFIRMATIVE DEFENSE (Punitive Damages Limited) 20. As a separate and twentieth affirmative defense to the Complaint and each purported cause 0f action contained therein, Defendants allege that if Plaintiff produces clear and convincing evidence against Defendants sufficient to satisfy the requirements for punitive damages under California Civil Code, Section 3294, any punitive damages awarded must be reasonable in terms of the following guideposts set forth by the United States Supreme Court in BMW ofNorth America. Inc. v. Ira Gore. Jr.: (1) the degree of reprehensibility 0f the Defendants’ conduct; (2) the actual harm inflicted on Plaintiff; and (3) the civil or criminal penalties that could be imposed for comparable misconduct. / / / / / / / / / -6- DEFENDANTS, ALMADEN OPERATING COMPANY, LP AND CHARO LAGUNILLA’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES 4; QQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-FIRST AFFIRMATIVE DEFENSE (Statute 0f Limitations) 2 1. As a separate and twenty-first affirmative defense to the Complaint and each purported cause 0f action contained therein, Defendants allege that the purported causes of action asserted in the Complaint are barred by such statutes 0f limitation as may be applicable, including, but not limited t0, California Code of Civil Procedure Sections 335, 335.1, 336, 337, 338, 339, 340, 340.5, 340.9, 343, 344 and 474. TWENTY-SECOND AFFIRMATIVE DEFENSE Waiver) 22. As a separate and twenty-second affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendants allege that Plaintiff is barred in Whole 0r in part from prosecuting the purported causes of action set forth in the Complaint by the doctrine of waiver. WHEREFORE, Defendants pray for relief as follows: 1. That the Complaint be dismissed, With prejudice and in its entirety; 2. That Plaintiff take nothing by reason of this Complaint and that judgment be entered against Plaintiff and in favor 0f Defendants; 3. That Defendants be awarded its attorneys' fees and costs incurred in defending this action; 4. That Defendants be granted such other and further relief as the Court may deem just and proper. I\ I-r! A .E Dated: August 16, 2021 By: DARRYL A. ROSS Attorney for Defendants _ 7 _ DEFENDANTS, ALMADEN OPERATING COMPANY, LP AND CHARO LAGUNILLA’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES .p QQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party t0 the within action; my business address is 5440 Trabuco Road, Irvine, CA 92620. On August 16, 2021, I served the document(s) described as DEFENDANTS, ALMADEN OPERATING COMPANY, LP AND CHARO LAGUNILLA’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES on the interested parties listed below in the manner described below: William M. Barman, Esq. Harlan J. Zaback, Esq. BERMAN & RIEDEL, LLP 12264 E1 Camino Real, Suite 300 San Diego, CA 92130 (858) 350-8855 (O) (858) 350-9855) (F) Said service was made by: (XX) BY E-MAIL or ELECTRONIC TRANSMISSION: Under C.C.P. § 1010.6, I caused the aforementioned documents t0 be sent t0 the person or persons at the email address indicated during normal business hours. Idid not receive, Within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. (XX) STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 16, 2021, at Irvine, California. By: Shereen P. Greeno -8- DEFENDANTS, ALMADEN OPERATING COMPANY, LP AND CHARO LAGUNILLA’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES